United States v. Hunter

United States of America Plaintiff- Appelleev.John Hunter, Sr. Defendant-Appellant

Submitted: March 10, 2017

Appeal
from United States District Court for the District of
Minnesota - St. Paul

Before
LOKEN, MURPHY, and BENTON, Circuit Judges.

LOKEN,
Circuit Judge.

A jury
convicted John Hunter, Sr. of one count of conspiracy to
defraud the United States by filing false income tax returns
in early 2010; nine counts of filing false claims for payment
of tax refunds between February 2010 and January 2012; and
two counts of aggravated identity theft in January 2012. The
district court[1]denied Hunter's motions for a new trial
or judgment of acquittal and sentenced him to 70 months in
prison. Hunter appeals, arguing that the government failed to
prove the single conspiracy charged in the Second Superseding
Indictment, and that the district court abused its discretion
in admitting certain evidence, improperly imposed sentencing
enhancements, and erred in denying his motion for a new trial
based on ineffective assistance of counsel. We affirm.

I.
The Conspiracy Issue.

Hunter's
primary contention on appeal is that the United States failed
to prove a single overarching conspiracy because the evidence
showed multiple, separate "rimless wheel
conspiracies." When reviewing this claim, we view the
evidence in the light most favorable to the jury's
verdict. See United States v. Hamilton, 837 F.3d
859, 863 (8th Cir. 2016).

At
trial, the government introduced 48 fraudulent 2009 income
tax returns claiming $231, 494 in refunds, Hunter's own
return and the returns of 47 "filing
co-conspirators" who were relatives of Hunter, people
who lived with his relatives, and people who knew Hunter
through church. The IRS paid refunds totaling $152, 182.

The 47
fraudulent returns filed on behalf of others were
electronically filed in early 2010 through a tax preparation
website from IP addresses in Minnesota and northwestern
Wisconsin. The returns accurately reported the
individual's name, date of birth, social security number,
and address. Many falsely reported wages between $13, 000 to
$16, 000, income levels that supported claims for the maximum
earned income tax credit. Some claimed tax withholding
refunds, supported by fake W-2 forms from real employers.
Others reported false refundable education credits and
fictitious withholding from gambling winnings. IRS agents
contacted employers listed on the returns and determined
fictitious employment and wages were reported.

To
receive tax refunds, Hunter or a tax-preparer associate would
take out a prepaid debit card in the filing taxpayer's
name, using that individual's correct social security
number and date of birth, and entering the debit card's
bank routing and account number on the tax return. IRS
refunds were deposited in those accounts. Hunter would share
a portion of the fraud proceeds with the filer.

IRS
agents subpoenaed wireless providers associated with the IP
addresses from which the returns were filed. The majority
were filed from IP addresses traced to Hunter's home
addresses. Seven others were filed between January 20 and
January 25, 2010 from an address traced to the Country Inn
and Suites in Cottage Grove, Minnesota, where Hunter had
rented a room a few days before.

Two IRS
agents questioned Hunter at his home in a January 2013
consensual interview. Hunter admitted that he participated in
filing false returns. He said that others from Atlanta and
Miami had filed the returns from a hotel or using the Wi-fi
network in his home. Though expressing a desire to cooperate,
Hunter refused to provide their names, saying "I got
myself into this." When alerted that he could be charged
with identity theft, Hunter inquired how that would be
possible when friends had given him their identifying
information for the purpose of filing false returns.

Four
alleged filing co-conspirators testified for the government
at trial. Tekoah Whitsett, who attended school with
Hunter's daughter, testified that Hunter prepared her
2009 income tax return for a fee. The return falsified wages
and employment information. The IRS paid a $6, 774 refund,
and Hunter paid Whitsett $1, 500 in cash. When Whitsett asked
for a copy of her tax return, Hunter told her that someone
else possessed it, "that he had been doing this for
years and that he had worked with someone out in
Woodbury." Maricus Roseman testified that Hunter offered
to file his 2009 tax return. Roseman agreed and provided his
personal identification information. The return fraudulently
obtained a $3, 319 refund. Roseman testified that Hunter only
gave him a few hundred dollars, and explained that he was
keeping the remainder of the refund to split with a few more
people.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Noting
that alleged conspirators testified at trial that they did
not know each other, Hunter argues the government&#39;s
evidence "at best" established multiple
conspiracies, rather than the single conspiracy charged in
the indictment -- a rimless wheel conspiracy in which
multiple unconnected "spokes" dealt independently
with the same "hub" conspirator, Hunter. See
Kotteakos v. United States, 328 U.S. 750, 754-55 (1946).
He asserts, without explanation, that he was "prejudiced
by the variance between the indictment and the proof."
Whether the government&#39;s proof established a single or
multiple conspiracies is a question of fact; we reverse only
if "no reasonable jury could have found the single
conspiracy charged in the indictment . . . [and] this
variance in the government&#39;s proof has prejudiced [the]
defendant&#39;s substantial rights." Hamilton,
837 F.3d at 863 (quotation omitted). "A single
...

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